Tuesday, April 19, 2016

Conclusions of the Appellate Court's Decision Goncalo Amaral

This is a translation of numbers 3 and of the Appellate Court of Lisbon's decision in the case that has been filed by the McCann family against Gonçalo Amaral and others. This blog would like to express its heartfelt gratitude to every one of you who have supported Gonçalo Amaral through this case. It is not over; but this is, without doubt, a significant and relevant decision that boosts our confidence in the Portuguese Courts and in a system that may be excruciatingly slow but ultimately serves its purpose of performing Justice. Thank you.

3. Under articles 635, number 4, and 639, number 1, of the Civil Process Code, the matter of the appeal is delimited by the appellant’s conclusions.

The matter subject to decision is thus essentially centred on the evaluation of the alleged wrongfulness and the responsibility that derives from it, imputed to the 1st defendant [Gonçalo Amaral], now the appellant, of the publication, by the 2nd and the 3rd defendants, equally appellants, of the works at stake.

As far as personality rights are concerned, article 26, number 1, of the Constitution states that everyone has a right to a good name and reputation and to the protection of the intimacy of private and family life.

The same fundamental law protects, with equal dignity, freedom of expression, by stating under number 1 of article 37 that everyone has a right to express and to publicise their thoughts in words, image or by any other means, as well as the right to inform, to inform oneself and to be informed, without impediment or discrimination.

And also, under number 2 of article 38, freedom of press, by consecrating freedom of expression and of creation by journalists and their collaborators.

Number 2 of article 18 establishes, in the case of conflict between fundamental rights, that any legal restrictions to those rights must be limited to whatever is necessary in order to safeguard other rights or interests that are constitutionally protected.

On the other hand, in ordinary law, article 70 of the Civil Code consecrates, as a principle, that the law protects individuals against any illicit offence or threat to offend their physical or moral integrity, while article 80 of the same diploma states that everyone must respect someone else’s intimacy of private life.

Whenever there is a collision of rights that are equal or of the same kind, the holders must, under number 1 of article 335, cede as necessary in order for all of them to produce their effect equally, without greater damage for any one of them – while (under number 2 of the same article), if the rights are not equal or are of different species, the one that is considered superior must prevail.

Therefore, and as the dominant jurisprudence understands the matter:

“One of the limits to the freedom of information, which therefore is not an absolute right, is the safeguard of the right to a good name. Journalists, the media, are bound by ethical and deontological duties, and duties of rigour and objectivity.

- The media have the right, the social function, of spreading news and giving critical or non-critical opinions, and it is important that they do so with respect for the truth and for someone else’s intangible rights, as are personality rights.

- The right to honour, in a broader sense, and the right to freedom of press and of opinion are traditional areas of conflict.

- Criticism has a boundary in the rights of its targets, but it remains legitimate if it is sharp, steely, as long as it is not injurious, because so often therein lies the style of the author.

- To criticise implies to reproach, fault-finding that is aired in the media only stops being legitimate as a manifestation of individual freedom when it expresses objective antijuricity, violating rights that are extremely personal and which effect, in a more or less lasting manner according to men’s memory, assets that need to be preserved as are the rights here at stake, to honour, to a good name and to a social standing” (decision by the Superior Court, dated 20/1/2010, www.dgsi.pt)

In the case at hand, apart from the reporting of the facts that are part of the inquiry into the disappearance of Madeleine McCann, an analysis of the book and of the rest of the published material finds that the now 1st appellant [Gonçalo Amaral] therein sustains the thesis that an abduction did not take place, but rather the accidental death of the child, followed by a cover-up – through the concealment of her cadaver and the simulation of that crime – by plaintiffs Gerald and Kate McCann, now the subjects of the appeal.

It results from the aforementioned publication that the means of evidence and the indicia that it reports to are, essentially, those referred to and documented in the respective criminal enquiry.

Nevertheless, the exposed thesis, that the child died accidentally and that fact was concealed by the parents, who have broadcast, in order to deceive, the hypothesis of an abduction, is not new – the same is equally contained in the report which is mentioned under number 9 of the proven facts, determining the arguido constitution of said subjects of appeal [Kate and Gerry McCann], and was, after a copy of the inquiry was made public, published in the media (numbers 65 and 66 of proven facts).

As was stated in the decision, from this Section, concerning the appended injunction, the 1st appellant [Gonçalo Amaral], wanted, through this book – because the institution to which he was bound did not allow him to reply to attacks against his pride and honour, as a professional of the criminal investigation police – to expose his vision of the facts, and therefore the publication of said book has to be considered a legitimate exercise of the right to an opinion.

And because from the proved matter results that – apart from it being about facts that have been profusely published in the inquiry and even publicised through an initiative of the Republic’s Prosecutor General’s Office – it was the subjects of the appeal themselves [Kate and Gerry McCann] who, benefiting from an easy access, multiplied themselves in interviews and interventions in national and international media, one must conclude that it was them who, voluntarily, limited their rights to reservation and to the intimacy of private life.

By proceeding in this manner, they opened the way for anyone to equally express an opinion about the case, contradicting their thesis – without losing their right to exercise a legitimate, and constitutionally consecrated, right to an opinion and a freedom of expression of thought.

On the other hand, we cannot see how the right of the subjects of this appeal [Kate and Gerry McCann] to benefit, following their constitution as arguidos, from the guarantees of the penal process – including the right to a fair investigation and the right to freedom and safety – may be offended by the contents of a book which, in its essence, describes and interprets facts that are part of an inquiry whose contents have been published.

Nothing opposes that, although they have not been deemed sufficient to lead to a criminal charge, said facts are subject to diverse appreciation, namely in a work of literary nature.

Therefore, and because it is contained within consecrated rights, namely under numbers 37 and 38 of the Constitution, the publication at stake must be considered lawful.

Nonetheless, it is understood, in the decision under appeal, that because the 1st appellant, Gonçalo Amaral, was, until October 2, 2007, the coordinator of the criminal investigation into the disappearance of Madeleine McCann, he was, after his retirement on the 1st of July, 2008, subject to the duties of secrecy and reserve that are imposed to the employees that serve the Polícia Judiciária.

And, under such terms, although the introductory note in the book invokes personal reasons, in a situation of conflict with the rights to a good name and reputation of the subjects of the appeal, the appellant [Gonçalo Amaral] could not benefit, faced with the results of the investigation, of a broad and full freedom of expression – and thus his conduct would be unlawful, under article 484 of the Civil Code.

From what was above said about this matter, it is clearly understood that such argumentation cannot be sustained.

In effect, and independently of the reasons invoked by the appellant for the publication, it is hardly understandable that an employee, even more a retired one, would have to keep said duties of secrecy and reserve, thus being limited in the exercise of his right to an opinion, concerning the interpretation of facts that were already made public by the judiciary authority, and widely debated (in fact, largely by initiative of the intervenients themselves) in the national and international media.

In the absence of its primordial presupposition it must therefore be concluded against the previous decision, due to the lack of precedence of any of the requests that have been formulated by the current subjects of the appeal [Kate and Gerry McCann] – while the re-appreciation of the matter of fact that had been secondarily requested remains impaired.

4. From the above mentioned, it is agreed, in accordance with both appeals, to revoke the appealed decision and, considering the action against them to be unfounded, to acquit the appealing plaintiffs of the totality of the requests. The costs, in both instances [courts] are to be paid by the appealed subjects [Kate and Gerry McCann]. http://pjga.blogspot.co.uk/2016/04/translation-of-conclusions-of-appellate.html

CM is still spinning away in the background, I think ... as none of the main media outlets are quoting Detective Chief Superintendent Duthie recent statements to the Evening Standard in full. They apparently do not wish to (or have been told not to) report this bit:

Mr Duthie said: "there is a missing girl and if she has been murdered and if we think we have got justifiable and reasonable lines of inquiry to pursue then they should be dealt with."

Poor CM .. Duthie AND the Appellate Ruling being published at one and the same time. What does he do?

Duarte is reported as saying that the McCanns will appeal the Appellate Ruling, but it is not that simple. They will first need to seek approval to appeal, as GA did. I am not sure whether or not it is even possible to appeal this decision under Portuguese Law ... do any of you wise birds know?

Almost a year to the day that former PJ detective Gonçalo Amaral learnt that the parents of missing Madeleine McCann had successfully sued him over his book “The Truth of the Lie”, three appeal court judges have ruled that there is essentially no case to answer.

Ferreira de Almeida, Catarina Manso and Alexandrina Branquinho have unanimously overturned the ruling of a lower court, freeing Amaral from a €500,000 bill for damages and another €106,000 in legal costs.

The McCanns are “almost certain” to appeal - but the fact that the judges were united over their 16-page decision speaks volumes.

For further details, see our printed edition, out on Thursday morning.

Coincidentally, Tuesday’s ‘news of the appeal result in Portugal’ came as papers in UK were highlighting remarks made by “the detective in charge of the search for Madeleine”, Detective Chief Superintendent Mick Duthie - a new name in the British-led inquiry - who said police “still believe Madeleine could be found alive”.

Glossing over the fact that British press has given the long-running probe by the Metropolitan Police until October before funding is pulled altogether (click here), Duthie told reporters that Operation Grange (so far costing British taxpayers in excess of £12 million) could be extended by additional funding, as there is “always a possibility that we will find Madeleine”.

Nevertheless, this week is one for the Amaral camp.

As I was saying, call me an old cynic but I fancy the timing of Duthie's release was more than a tad coincidental.

"I am going to come straight out with this. British diplomatic staff were under direct instruction to support the McCanns far beyond the usual and to put pressure on the Portuguese authorities over the case. I have direct information that more than one of those diplomatic staff found the McCanns less than convincing and their stories inconsistent. Embassy staff were perturbed to be ordered that British authorities were to be present at every contact between the McCanns and Portuguese police."

As for the McCanns I think it is/was about the twins since 'all about the money' is beyond my comprehension. Winning damages are/were symbolic of their 'innocense'. Only my opinion, which might be symbolic of my naivety.Maren

We are absolutely determined to get her back. But it could have been worse - we could have lost the twins too. There were three children in the room. That's the worst nightmare. - Gerry McCann

CommentLawman, Newcastle upon Tyne, United KingdomI have long wondered who authorised the expenditure of ten million pounds on this case. I very much doubt that it, or anything like it, has been authorised for any other missing child. I would suggest that there needs to be an investigation into the back story behind this.

Lawman of Newcastle upon Tyne: "I would suggest that there needs to be an investigation into the back story behind this."

Therein lie the answers to all of our questions.

That 'the twins' occupied a different place in the McCann family to Madeleine is clear. However, I don't think pocketing the money was as important to the parents as depriving Amaral of the means to contest suppression of his book (let's not overlook that extraordinary adjunct to the original damages verdict). These were factors that UK officialdom could not openly address without exposing the extent of their role in the McCanns' sham exoneration.

I suspect that backstage manoeuvres were (and are) being accompanied by the McCanns' public efforts at muzzling Amaral. I have no other explanation for the scale of damages originally awarded in relation to a series of claims adjudged to have been 'unproven'. The McCanns lose the case yet win the money? How does that work? Perfectly as far as the UK MSM were concerned (e.g., McCanns WIN £350k in damages etc., etc.). That coupled with Operation Grange out looking for an abductor, and you have a pincer movement.

CDS Duthie was quoted in the Evening Standard as saying 'There is a missing girl and if she has been murdered and if we think we have justifiable and reasonable lines of inquiry to pursue then they should be dealt with.'

No other MSM has informed the public that Duthie said this even though they all quote the Evening Standard as their source.

I find that very strange. It is reprehensible and blatant cherry-picking. Maybe the press have been instructed never to use the word MURDER in any piece about Maddie.

Dr Roberts agree totally with you. I always thought the British Establishment had more to fear of having the truth of the lie sold in the UK. Most of the information regarding the McCanns I.e the dogs and the refusal to answer questions had been printed in uk newspapers in 2007 so a good many unblinkered uk residents already knew about these. It's the parts about diplomatic involvement that will shock them. It has always been my thought that it was them who encouraged the long running legal battle to keep the book out of the U.K.

'He refused to give further details about the inquiry but confirmed that detectives were still examining possible links to a series of burglaries in the Algrarve area at the time Madeleine went missing.'

It is all well and good the mccanns rattling their sabres and threatening to sue anyone who sells the book in the UK, how do they propose to fund the costs for such litigation?They already owe hundreds of thousands, if not millions in legal costs, they lost this last appeal and are liable not only for all their own costs, they are also liable for all the costs incurred by the multiple defendants.This is on top of their outgoing to the pink princess and carter-ruck whom i cannot believe would do pro bono work for people suspected of homicide, concealment of a corpse and filing a false police report along with said clients self proffessed claims of nightly child neglect regardless of the clients jobs, fame or infamy.It boils down to money.As long as you can pay they will do your work, if you don't have the money,or are likely to be unable to pay then it is no thanks and on your bike.Given the rapidly mounting costs, i suspect carter-ruck are only used as and when the mccanns need an official letter.

I do wonder about all their other lawyers, the extradition ones, the Portuguese ones.Are they paid on an as needed basis?I suspect so with the extradition lawyers.All the mccanns had to do was have a nice chatette with a lawyer and make it known they 'hired' said lawyer (it was actually just a what can we do if they call us back chat)Ditto for the Portuguese ones though they may have ID on a fixed fee and making sure they are getting their monies worth.She may have initially seen it as a platform to get her name out there and get a lot of business as a result thus she would charge a reduced/discounted rate.

The mccanns simply do not have the money to sue anyone.The fund was stated not to be used for legal fees, this may have changed since the mccanns had a clear out of directors and pretty much now has them doing what he tells them or else.

There would be public outrage about them using the fund for legal fees as well as all costs to date, remember the outrage when it was leaked they took 2 months mortgage payments.At this time, the mccanns really won't give a chit, it is all or nothing now.They effectively bankrupt, they have and will lose everything.They have nothing left to lose and they know it.

The question is, do they have a backer who will pay their not inconsiderable legal fees and costs plus compensation?Will the backer also pay back all the money obtained fraudulently, the awards made to the media out of court, the very media who will now demand their money back plus interest?What about the tapas 7 who allegedly gave their awards to the fund, will the tapas 7 now demand the return of their money in order to pay their own money plus interest to the media as well as all the court costs etc?

I am not talking a few thousand or even a few hundred thousand, this is likely to run into millions.Is there seriously going to be some mega rich benefactor who will cough up multi millions to protect the mccanns?Possibly if they have something on said benefactor and threaten to blackmail them.However depending on the reason, said benefactor could say sod that for a game of soldiers, refuse the money and whatever happens will happen.

I do expect to see the ol' begging bucket back out in force appealing for money to fight their battle against the nasty ex detective who is trying to make their two surviving, innocent children homeless.Forcing them to live on the street, wear rags and live on a diet of pot noodles and crisps.

I also fear that the mccanns now painted into a corner of their own making, especially kate, to perhaps look to press the button she spoke of, killing the twins, gerry (justifiable) and herself.

The game is coming to a close and they know it.Everything they worked for is down the pan.Kate is unemployable in any medical position and probably in any skilled or unskilled role given she is a self confessed child neglector and a suspect in the death, disposal and coverup of her daughter Maddie.

Gerry's ego knows no bounds,when push comes to shove, it is him in the lifeboat first.I fully expect him to throw kate and the tapas 7 under the bus, whilst painting himself as the heroic father trying to keep his family together despite his wife's mental issues (not guilty by reason of insanity, or not guilty due to (insert mental disease here)or not guilty due to diminished responsibility.Kate goes to a hospital or maybe prison, he is viewed as the loving, protective and carng husband who fought to keep his family together, even to covering up for his wife (and chums?)He gets custody of the twins, a book and movie deal, possible roles on boards, maybe political office when the furor dies down and finally an honor or two for services to whatever.

Will it come to first past the post wins the prize?Will divorce rear its head?If it does and there isa custody battle, then the fun will start as they blame each other for whatever happened to Maddie.They won't stop to think or listen to their lawyers, it will be there is no way you are getting the kids and possibly (though i hope not) if i can't have them, nobody can, particularly relating to kate.

We know she has a vicious and violent temper, the bruises on her wrists and arms from allegedly beating the wall, the kicking out and smashing of furniture.Will she open mouth and insert feet not caring about the consequences.She won;t mind doing time if it means gerry does as well and he doesn't get the kids.The grandparents can fight it out between them.

Time will tell.I see this are coming to a conclusion sooner rather than later.I hope the tapas 7 are seeking advice regarding their legal position in relation to the events that week in PDL and subsequently.How much they could be liable for.If they can arrive at some kind of deal perhaps to minimize the impact on their finances and their lives.

I have a front row seat and plenty of popcorn.The support acts have been and gone, it is almost time for the main feature.

Martin R .. allow me my tiny fleck of hope that the Met will eventually turn their attention to the McCanns and their pals. I know that to say that i retain that fleck against all odds will be treated with derision by those here. But so be it.

But of course. Whilst I subscribe to the principal of disagreement I draw the line at derision. After 9 years this wretched saga is unlikely to end in a mere moment. There will be ample time for people (including we jaundiced ones) to reconsider their positions where appropriate, as things gradually unfold.

So the question is how much anti McCann feeling and humilation over the investigation will the Government take (and there will be a limit,they are politicians first!!) before they hang something or someone out to dry. That is of course if the Macs don't flip under what(even if they are aware of the commitment of the protection they have.),what must be an increasingly uncomfortable position to be in! All recent attempts to communicate via the media has encouraged a negative with the court result simply topping a crescendo of backlash,although I'm sure that it seems worse from where we stand, it still cannot be pleasant or comfortable. The twins for one must see the headlines and you can see why Kate said she had told them everything,it makes perfect sense for the coming melee. Whatever way you look at it this week was seismic,and the cracks are deep and meaningful.......they may have spent 12million without a care,but it's the 12 million of a gambler on a losing streak and under the water the eyes will be batting as to the next move.....as for me....the afternoon will consist of some sipping liquor and loud music starting with ......When the Levee Breaks..

Cryin' won't help you, prayin' won't do you no goodNow, cryin' won't help you, prayin' won't do you no goodWhen the levee breaks, mama, you got to move

All last night sat on the levee and moanedAll last night sat on the levee and moanedThinkin' about my baby and my happy home.....

Seriously, your opening question is the order of the day, although the end-game is far from straightforward. I think this is a case where it is difficult to kill the parasite without seriously endangering the host.

As if to prepare the theatre for the operation, we are now seeing (e.g., in Craig Murray's recent comment) public confirmation of the Blair Government's mistaken complicity in, shall we say, skewed project management, immediately following the night of 3 May (Redwood's 'point zero').

The problem is that the cavalry had already appeared over the horizon several days beforehand. The McCanns will know that and so will the bugler!

I have chosen this later version because age brings everything to this track. It relentless rift a harbinger of the chaos to come "Levee" really thumps home what damage and fear these bustin walls bring. The track was of that time the British Blues acts such as Stones,Zep etc brought the music back to white America with complete respect for its roots.....Simon Cowell would have shown them the door before they played........forget the sandbags you got ta move....... Bampots

"This is all MISLEADING again. Why do you (The Sun) continue to mislead your readers ? This trial was NOT a libel trial, it was a DAMAGES trial. The McCanns were awarded money because the court agreed that Amaral's book hurt them and damaged their "reputation" (eh ?). The McCanns were NOT awarded any money because Amaral was lying and his book was RULED as FACTUAL, based on EVIDENCE compiled during the Portuguese police investigation. The court also ruled that there WASN'T a shred of evidence to prove that Amaral's book hampered their "search" ( I know, what search ?)

Had the McCanns accused Amaral of lying then this trial wouldn't have taken place in a civil court and Pandora's box would have been blown wide open which would have been very, VERY BAD for the McCanns. They now need permission to appeal to the supreme court and sources in Portugal have said that it is very unlikely that the supreme court will entertain a civil matter. Couple that with unanimous verdict delivered by the Apellate court and there chances of an appeal are pretty grim. Anyone know why Amaral's book is banned in the UK ? Who the hell do these people think they are, getting a book banned ?"

THE PARENTS of Madeleine McCann yesterday vowed to “do everything we can to get her home” as they told of their disappointment at losing a battle over a £434,000 libel payout.*

Vowed to "do everything we can to get her home" Iam convinced it's a deliberate sentence and meant to be taken literally. It implies she is there to be "got" as if she missed the bus and they were off to collect,or send a taxi,aeroplane cancelled but don't worry we will do everything we can to get you home dear! It's certainly not,we will pull all the stops to find you as they patently haven't,there never seems to be anyone actually searching....it all just semantics......but who are they talking to......they certainly seem to be speaking to someone?

I'm sure I am far from alone in saying that I had a significant investment in Amaral's go-fund-me. I would have been a very Sick Brit indeed had the decision gone the other way, the way I truly expected it to go.

In the event that a public official is not sworn to secrecy, exactly how long must they be 'out of office' before they are allowed to comment upon anything contentious? The final decision of this court was supposed to have been given in private, so no blame could be attached to any official statement emanating from it. But what about evidence given at previous hearings? Might not the (publicly reported) statements of such as PJ Inspector Ricardo Paiva be viewed as 'prejudicial to the presumption of innocence'? No castigation offered in that direction though, eh?

In sum, and based upon legal precedent, apparently, we have the duty of a public servant (and others) toward a suspect under investigation, levied against a man no longer in public office, and on behalf of two people who are not suspects, not being investigated, and in no imminent danger of standing trial for anything at all. Does that make any sense? . . .

The essence of the thing in a normal world.

. . . the Grange curtain can be brought down now, courtesy of a judge who has seen fit to portray the McCanns as injured parties, not on account of the evidence, but in spite of it.

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